If we view the fatwa on the all-girl Kashmiri band Pragaash within the ambit of the problematic co-existence of Sharia law and civil law in Jammu and Kashmir, the occurrence of the decree by Mufti Bashiruddin was predictable - while being psyched into action by media reporting. Despite many years of distrust and animosity within the state and with the government of India, had local courts in Jammu and Kashmir done more to apply rules of Shariat law for the sake of people - Pragaash would not have been forced to disband and immolate their desire to sing - freely and without an edict hanging over their heads.

If there's anyone who has displayed a sense of the rule of law, it's the three class X girls of the Kashmir band Pragaash, who were issued a fatwa by Kashmir's Grand Mufti Mufti Bashiruddin on February 3 - asking the girls to stop playing music as it was not Islamic, while citing the hatred against them on social media. As the parents of the girls were also admonished to focus on morals than music, they must have asked the girls to desist from singing. But had they wanted to play, what would have happened? A possible law and order situation? Street-level politicization by moderates and hardliners? The members of Pragaash (meaning from darkness to light), for the sake of order and calm, decided to lie low even though they have been receiving a lot of support. This restraint, backed by reluctant fear and threat of violent social ostracism, has defused the situation.

In
Focus

Even as the Omar Abdullah government, jolted into action by wide coverage of the fatwa and support for Pragaash, has asked local police to file FIRs against the guilty Facebook users who put up hateful comments - a closer examination of the structure of religious-judicial protection of rights in Jammu and Kashmir reveals that the Jammu and Kashmir high court and lower courts - the mandated upholders of Indian republic at the state level - have not shown enough leadership in striking the balance in favour of individual rights - over and above the prevailing Shariat Islamic personal law, enacted by Jammu and Kashmir under the central Shariat Act of 1937.

The highest court in Jammu and Kashmir is legally obliged to do so. In 1954, the Supreme Court's jurisdiction was extended to the state of J&K, and for the first time, under Art.32(2-A) of India's Constitution of India, the State High Court was given power to issue writs to enforce fundamental rights as applicable in J&K. And in 1957, an independent judicial body with the High Court at the apex, was created in J&K.

But the presence of the Muslim Personal Law (Shariat) Bill, with the Grand Mufti, as its titular law interpreter, results in a parallel dispensation of justice in many matters. Driving home the point that the state court has lacked judicial leadership in the last 30 years, Dr. Tahir Mahmood, Member, Law Commission of India, renowned Jurist specializing in Islamic Law, Hindu Law, Religion and Law and Law Relating to Minorities, in an exhaustive research paper, has concluded that the "judiciary in this [J&K] state has been committed to the principle of rigid taqlid, hardly leaving any room either for a judicious application of the principles of Muslim personal law or for the removal of popular ignorance about the true principles of the Sharia."

Dr. Mahmood says that state of Jammu and Kashmir is "mandated to combat 'ignorance, superstition, fanaticism, communalism, racialism and cultural backwardness,' but the Muslims have failed to secure constitutional protection of their personal law.' In the state, state laws are supreme over personal Islamic laws, and largely the the trial courts and the High Court have tried to enforce this legal position over the years.

But indicting the state's highest court, he also said, "While certain courts and some learned judges in the rest of the country have contributed their learning and judicial acumen to a systematic development and correct interpretation of the rules of Islamic law, the judges in this predominantly Muslim state have generally refrained from so doing."

In essence, in the absence of the activist element in J&K judiciary, the Supreme Court could have given directives to the Jammu and Kashmir High Court, officially or unofficially, to not to shy away from its responsibility to apply Muslim law rules in the right perspective - within the rationale of Islamic law. India is clear - Jammu and Kashmir is an integral part of India. But India is also a republic - swearing by the rule of law. This 'right to laws' and its protection as expected by a citizen, was tested by Mufti Bashiruddin, and the republic fell short of expectations. The sad irony was not lost on this citizen journalist . On visiting the Facebook page of Pragaash, the band has listed its personal interest' as 'Passionate about India.'

If the state can't guarantee law enforcement on the right to sing and create music - then a takeover of personal laws within a largely Muslim state is a threat to basic individual rights, and poses challenges of societal and cultural self and religious suppression.

Playing music, when and where, and to whose detriment - these fall strictly under purvey of civil law, and one can arrive at rules and regulations independent of geography, religion and other parameters of identity. The fatwa against the members of Pragaash is therefore a reminder that the long-standing Uniform Civil Code is lying in limbo. The Constitution of India has mandated that such a code be made as part of a Directive Principle. This wide-ranging code, after due deligence, will put in place neutral laws, and will supercede all personal laws governing a religion, caste or a tribe in areas such as marriage, divorce, property and adoption - absorbing much of the power and influence of personal laws.

Pragaash band members guitarist Aneeka Khalid, drummer Farah Deeba and vocalist-guitarist Noma Nazir, who, reportedly, in their first public appearance December 2012, gave a dazzling 'best performance' in the annual 'Battle of the Bands' competition held in Srinagar - will be hoping that the media noise and political din dies down so that they can string new tunes in peace.

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